Madhya Pradesh High Court
Krishnakumar vs Pushpa on 7 August, 2025
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:17051
1 MP-4166-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 7 th OF AUGUST, 2025
MISC. PETITION No. 4166 of 2025
KRISHNAKUMAR
Versus
PUSHPA AND OTHERS
Appearance:
Shri Harshvardhan Sharma - Advocate for the petitioner.
Shri Rohit Shrivastava - Panel Lawyer for respondent/State.
ORDER
This petition under Article 227 of the Constitution of India has been
preferred by petitioner being aggrieved by the order dated 17.07.2025
(Annexure P-1) passed in RCSA No.18 of 2020 by Civil Judge, Junior
Division, Bhander, District Datia whereby trial Court dismissed the
application of the petitioner filed under Order 26 Rule 9 r/w Section 151 of
CPC.
2. Brief facts of the case are that petitioner filed a civil suit (Annexure
P-2) for removal of encroachment and permanent injunction against the
respondents with respect of land bearing Survey No.46 area 0.05 hectare
situated at Mauza Chak Pir Khan, Tehsil Bhander, District Datia (hereinafter
referred as "disputed land").
3. Petitioner and respondents No.7 to 10 are recorded bhumiswamis of
the disputed land. Around two and a half years ago, respondent Nos.1 to 6
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has started illegal and unauthorised construction on the disputed land of co-
ownership of petitioner and also encroached some part of the Government
land.
4. When petitioner objected, respondent Nos.1 to 6 stated that they
constructed on Survey No.27/2 Mauza Bhander and petitioner should get the
disputed land of his co-ownership demarcated and if after demarcation
respondent Nos.1 to 6 construction found on disputed land, they they will
themselves remove the construction. Demarcation has been done by the
Revenue Authorities. Petitioner filed a civil suit for removal of encroachment
and injunction before trial Court. During pendency of the suit, petitioner
filed an application under Order 26 Rule 9 r/w Section 151 of CPC for
demarcation of the suit property which was rejected by the trial Court in
view of demarcation of the disputed land has been done earlier.
5. Being aggrieved by the impugned order, petitioner filed this petition
and submitted that respondents No.1 to 6 made illegal and unauthorised
construction over the disputed land bearing Survey No.46 on the pretext that
they have made construction on the land of Survey Nos.27/2. Both survey
numbers are adjacent to the each other. Thus, it became very necessary that
proper demarcation has been done. Hence, prayed for giving direction to trial
Court to appoint commission by setting aside the order.
6. Heard learned counsel for the parties present in the Court and
perused the entire record.
7. On perusal of the record, it appears that dispute was raised by the
parties before the Court, whether the respondent had encroached upon any
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land belonging to survey No.27/2 or Survey No.46. It is also clear that both
survey numbers are adjacent to each other and by way of demarcation, it
must be clear that whether respondents constructed/encroached over survey
No.27/2 or survey No.46 or not?
8. The Coordinate Bench of this Court in M.A.No.1061/2003 (Om
prakash and Another Vs. Ashok Kumar and Another) judgment dated
04.01.2013 held as under:-
9. "So far as question of demarcation by a Revenue Officer before
filing of a suit is concerned, the same, in our considered opinion,
shall not provide any solace to the defendants. Rule 9 of Order 26
relates to the directions by a Court. Any report by Revenue
Officer which could be collected before filing of the suit would
have been evidence in favour of the plaintiff but the commission
report in the present set of the circumstances would not be
evidence in favour of the plaintiff but would be an actual report of
the spot.
9. So, after considering the view of Coordinate Bench of this Court, it
is clear that trial Court has committed an error in rejecting the application
filed by petitioner for appointing commission, therefore, impugned order
is set aside.
10. Learned trial Court is directed to appoint appropriate Commission
in accordance with law and call the Commission's report for just and proper
adjudication of the suit.
With aforesaid observation, petition stands disposed of.
(HIRDESH)
JUDGE
*AVI*
